Introduction: Recording -- State hidden camera statutes

Some reporters regard recorders and cameras as intrusive devices that all but ensure that interviewees will be uncooperative. To others, they are invaluable newsgathering tools that create important documentary evidence of a conversation.

News organizations frequently adopt policies regarding surreptitious use of these news­gathering tools. It is critical that reporters and news organizations know the state and federal laws that govern the use of cameras and recording devices. The summary that follows is intended as an introduction to those laws.

You may record, film, broadcast or amplify any conversation if all parties to the conversation consent. It is always legal to record or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed.

Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit this so-called one-party-consent recording of telephone conversations in most circumstances.1 Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.2

The federal wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, “unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations.

Most states have copied the federal law. Some expand on the federal law’s language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.

Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed.

Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most statutes also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses.

In general, state statutes apply to conversations that take place within a single state.

When the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, federal law generally applies, although either state also may choose to enforce its laws against a violator.

If a reporter in a state that allows one-party-consent recording calls a party in a state that requires two-party consent, and records the conversation surreptitiously — which is legal under federal law — a state with tough laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of the federal statute. It is important to know your state law and the law in the state into which you call before you record surreptitiously.

The federal law and many state laws make it illegal to possess — and particularly to publish — the contents of an illegal wiretap. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime. The U.S. Supreme Court ruled in Bartnicki v. Vopper in May 2001 that the media could not be held liable for damages under the federal statute for publishing or broadcasting information that the media obtained from a source who had conducted an illegal wiretap. The recording related to a local union leader’s proposal to conduct violent acts in the area. The Court ruled that any claim of privacy in the recorded information was outweighed by the public’s interest in a matter of serious public concern.3 The Court did not indicate whether disclosure by the media under different circumstances would be legal.

The Federal Communications Commission also has adopted a policy, known as the “Telephone Rule,”4 which requires a reporter who records a telephone conversation that will later be broadcast to inform the other party that the recording is intended for broadcast.

State hidden camera statutes

The laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.5

Alabama, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, South Dakota and Utah also prohibit trespassing on private property to conduct surveillance of people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by a fine. In Maine, the privacy violation is a felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison.6

Several states have laws prohibiting the use of hidden cameras only in certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.7